GREEN, J.: Dr. Eric A. Voth sued Larry D. Coleman, Mary C. Jackson, Rosie M. Quinn,
Richard Carney, Hosea Ellis Sowell, and Dr. Arthur P. Taliaferro (defendants) for malicious
prosecution. Coleman and Taliaferro moved to dismiss the action based on the applicable statute
of limitations. In agreeing that the statute of limitations had run on Voth's claim, the trial court
dismissed the suit. On appeal, Voth contends that the trial court erred in determining that his
claim was barred by the statute of limitations. We agree and reverse the judgment of the trial
court.

The malicious prosecution action stemmed from Voth's testimony before the Kansas
Board of Healing Arts (Board) in 1988. At a hearing before the Board, Voth opined that because
Taliaferro's prescription practices were inappropriate, they presented an imminent danger to his
patients. As a result, the Board limited Taliaferro's privilege to prescribe certain drugs. Because
of the Board's action, Taliaferro sued Voth and various members of the Board in the United
States District Court.

On August 20, 1992, the federal district court granted summary judgment in favor of
Voth. Appealing that judgment, Taliaferro filed a notice of appeal to the Tenth Circuit Court of
Appeals. When the Tenth Circuit denied Taliaferro's appeal on April 20, 1994, Taliaferro moved
for a rehearing. The Tenth Circuit denied that motion on May 24, 1994. On June 23, 1995, Voth
sued the defendants for malicious prosecution.

Voth argues that because the trial court considered matters outside the pleadings, the
motion to dismiss must be treated as one for summary judgment under K.S.A. 60-212(c). We
agree. Our standard of review of a motion for summary judgment is clear. K.S.A. 60-256(c)
provides that summary judgment shall be granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law." Moreover,

"[w]here the defendant pleads a statute of limitation and moves for summary judgment
and it appears that
the action is barred by the appropriate statute of limitation and there is no genuine issue as to any
material fact in
connection with such statute, then the motion should be granted." Hartman v.
Stumbo, 195 Kan. 634, Syl. ¶ 2, 408
P.2d 693 (1965).

The question that we are asked to decide is when did Voth's action for malicious
prosecution accrue? The determination as to when a cause of action for malicious prosecution
accrues raises a question of statutory interpretation over which this court has unlimited review.
See State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993).

Voth agrees with the trial court's conclusion that an action for malicious prosecution is
subject to a 1-year statute of limitations under K.S.A. 60-514(b). Nevertheless, Voth contends
that his cause of action for malicious prosecution did not accrue until August 22, 1994, the last
day for Taliaferro to file a petition for a writ of certiorari with the United States
Supreme Court.
Under United States Supreme Court Rule 13.1, (28 U.S.C. App. 929 [1994]), a petition for writ
of certiorari may be timely filed within 90 days following the entry of judgment "in
any case,
civil or criminal, entered by a state court of last resort or a United States court of appeals." The
August 22, 1994, date would have been the 90th day following the Tenth Circuit's denial of
Taliaferro's petition for rehearing.

In disagreeing with Voth's contention that his action for malicious prosecution did not
accrue until 90 days after the denial of Taliaferro's motion for rehearing, the trial court stated:

"A discretionary appeal, however, is distinguishable from a counterclaim and from an
appeal of right.
More specifically, unlike an appeal of right, a discretionary appeal does not guarantee an
appellant that his or her
case will be accepted for review. Therefore, the fact that a great majority of discretionary
appeals will not be
accepted for review by a higher court indicates that the chances for inconsistent judgments from
the courts are
minimal. If, however, on the minuscule chance that a discretionary appeal is granted, the higher
Court would
simply stay the malicious prosecution action pending the outcome of the discretionary appeal."

The trial court distinguished appeals of right from discretionary appeals to select the date on
which an action for malicious prosecution would accrue. The trial court reasoned that because
discretionary appeals were unlikely to succeed, an action for malicious prosecution accrued from
the date of judgment in the appeal of right.

Nevertheless, finding that a plaintiff's cause of action for malicious prosecution did not
accrue until the time for appeal had expired in the initial suit, this court stated in H &
H Farms, 6
Kan. App. 2d at 269:

"Kansas law is well settled that one of the crucial elements of an action for wrongful use
of civil
proceedings is that the prior civil proceeding must have terminated in favor of the person against
whom the prior
civil action was brought, and that the action cannot be brought if the original action is still
pending and
undetermined. See Nelson v. Miller, 227 Kan. at 280; Harper v. Cox,
113 Kan. 357, 214 Pac. 775 (1923). . . .
Furthermore, a plaintiff's cause of action for malicious prosecution does not accrue until
the time for appeal has
passed on the original action." (Emphasis added.)

See also Lindenman, 255 Kan. at 624-25 (malicious prosecution action cannot
be brought until
the underlying action is concluded and the time for appeal of the underlying suit has passed);
Hutchinson Travel Agency, 10 Kan. App. 2d at 463 (malicious prosecution action
dismissed as
premature because appeal time had not passed).

In explaining the reasoning behind the rule, the Hutchinson Travel Agency
court stated:

"Favorable termination of the underlying civil proceedings is required to support a
malicious prosecution
claim for several reasons. First, a complaining party cannot show lack of probable cause in
instituting the
proceeding until it is finally terminated in his favor. [Citation omitted.] Additionally, a
complaining party cannot
show all damages from the institution of legal proceedings until they are terminated. And,
finally, it is recognized
that the requirement of final termination serves to help avoid inconsistent judgments from the
courts. [Citation
omitted.]" 10 Kan. App. 2d at 463.

Following the rationale of our precedents, we determine that Voth's claim for malicious
prosecution did not accrue until August 22, 1994. If Voth had filed his claim for malicious
prosecution before that date and an appeal had been filed in the original action, Voth's claim
would have been premature. Because Voth's action was filed less than 1 year after August 22,
1994, Voth's action was timely.